The contrasting treatment of those accused of verbal insults of the monarch and those responsible for violent repression casts a sorry verdict on the process of justice in Thailand, says Tyrell Haberkorn in Bangkok.

The electoral victory of Pheu Thai, the party led by Thaksin Shinawatra's sister, opens a dramatic new phase in Thailand's politics. Tyrell Haberkorn maps the background, in an article first published on 14 April 2010 (archive)

Thai citizens are again living under a state of emergency and the threat of bloodshed. The successive mass mobilisations by supporters of the "yellow" and "red" camps could in other circumstances be seen as evidence of a vibrant engagement with democratic politics; in the context of the near-meltdown of Thailand's constitutional order, they are more symptoms of a dangerous crisis. Where does Thailand go from here?

Thailand's crisis endures. The opposition protestors who have occupied Bangkok's Suvarnabhumi international airport for a week may have agreed with police on 1 December 2008 to allow a limited airlift of stranded passengers. But the destabilising effects of their bitter confrontation with the People's Power Party (PPP) government of Somchai Wongsawat threatens to corrode Thailand's democratic order even further. What is happening to this formerly stable southeast Asian polity, and what steps can and should be taken to address the problem?

Tyrell Haberkorn is a postdoctoral fellow in the Peace and Conflict Studies Program at Colgate University
Also by Tyrell Haberkorn in openDemocracy:

An important factor in current events is that the quixotically misnamed opposition group the People's Alliance for Democracy (PAD) - which has been demonstrating off and on since its formation in February 2006 - had become frustrated that their attempts to oust the elected government seemed to be getting nowhere. The yellow-shirted sea of PAD supporters had for months besieged the parliament in Bangkok, forcing the government temporarily to relocate to the former international airport, Don Muang.

Then, on the evening of 25 November the focus shifted to the current international airport of Suvarnabhumi, when PAD protestors swarmed in and paralysed air traffic in and out of Bangkok. This captured the attention of much of the world as well as Thailand itself, and brought the long-running dispute to a new level.

The PAD emerged as one element of the protest movement in 2006 calling for the resignation of Thailand's then prime minister, Thaksin Shinawatra. In the event, Thaksin's removal was the work of a military coup in September 2006 that seemed to spell the end of the populist leader's career and that of the Thai Rak Thai (TRT) party he led. But Thaksin could still rely on staunch support from his largely rural voting base, and his allies' new vehicle - the People's Power Party (PPP), seen by many as a reconfigured TRT and a proxy for Thaksin - was elected in December 2007 in the elections held to open a return to civilian rule.

This result - deeply unwelcome to many in Thailand's elite and to the country's urban middle classes - triggered a further series of prolonged protests throughout 2008. The PAD's spokespersons have been vehement in questioning the patriotism of the PPP; demanding the arrest, prosecution, and sentencing of Thaksin on corruption charges relating to his period in office; and, most urgently, campaigning for the resignation of the PPP government. This represents not just a challenge to a democratically elected government, but even a denial of the civic equality of the poor, rural citizens who comprise the majority of the Thai population and whose votes helped elect the PPP; for the "new politics" championed by at least some among the PAD envisions only 30% of members of parliament elected and 70% appointed by an as-yet-unnamed council.

The PAD's continued siege and refusal to negotiate with the government prompted the PPP prime minister on the evening of 27 November to declare a state of emergency in the areas surrounding Bangkok's two airports. The forced encampment of thousands of passengers at Suvarnabhumi - one of the world's largest airports - amid PAD claims of a "final battle" with the authorities has created potential damage to Thailand much greater than the billions of baht lost by its tourism industry. For while it has been clear for months that the PAD is intent on destroying democracy and its futures in Thailand, their recent actions point to the destruction of an more basic institution: law itself.

The theme reverberates through the crisis. In the first hours of the Suvarnabhumi siege, an unnamed tourism expert noted that the PAD's actions were an example of a "lawless society" in Thailand. The governor of Samut Prakan, where the airport is located, asked the PAD "to protest under the framework of law". The analyst Shawn Crispin has noted the difficulty of restoring the rule of law in Thailand now that it has been so assailed.

But the problem goes deeper than the PAD, for the sad truth is that it is not an anomaly in present-day Thailand. Many incidents in 2008 suggest that the PAD is a symptom of a deeper, more pernicious illness. This might be best described by invoking the phrase coined by the anthropologist James Holston - in writing about land and corruption in Brazil: "the misrule of law". This is a situation in which "illegal practices produce law, extralegal solutions are incorporated into the judicial process, and law is confirmed as a channel of strategic disorder" (see James Holston, Insurgent Citizenship: Disjunctions of Democracy and Modernity in Brazil [Princeton University Press, 2007]).

Through judicial actions - and inactions - the misrule of law has come to flourish in Thailand.

The law as weapon

So it is not just the PAD, and to criticise the PAD is not to imply that the "other" side is clean. On 21 October, Thailand's supreme court found Shinawatra guilty of corruption while in office (the first such verdict): it ruled that by aiding his now ex-wife Pojaman Shinawatra in purchasing prime Bangkok real-estate at a favourably low price from a state agency, Thaksin had breached conflict-of-interest rules.

Thaksin was sentenced to two years in prison. So far, he has not spent a day behind bars: he fled Thailand in August 2008 - initially to Britain and subsequently to a series of other nations, including China and the UAE - following Pojaman's conviction in another case. He gave as a reason that he did not believe that he could receive a fair trial in Thailand. Whether or not this is true, what is more striking are the crimes for which he has not been prosecuted. For Thailand's recent history under his rule and after is replete with deeply worrying violations of legality, of which four broad examples suffice to suggest the depth of the "misrule of law" problem.

First, in February-May 2003, nearly 3,000 people suspected of being "drug traffickers" were extra-judicially killed in the so-called "war on drugs". No one - the individual state agents involved in committing the murders or the prime minister who gave the order, Thaksin Shinawatra - has been held accountable. This war, suspended after an outcry from the media and human-rights activists, was reinstated in November 2008 - although Somchai felt obliged to warn the police not to extra-judicially kill people.

Second, in January 2004, Thaksin declared martial law in the three southernmost border provinces of Thailand - Yala, Pattani, and Narathiwat - where a local insurgency involving Islamist militants in these Muslim-majority areas was intensifying. Thaksin alleged that such rule was necessary for the restoration of order, but its effects included widespread violations of human rights of people in the region.

The martial-law rules prohibited gatherings of more than five people. So when, on 25 October 2004, a protest in Tak Bai district of Narathiwat province - after six villagers had been accused of stealing weapons from a local armoury - mushroomed to over 1,500 people - the people massed there were arrested. Many were stacked in horizontal layers in trucks for transportation to Inkarayuth army base, which was six hours away; among them, seventy-eight people died of suffocation in one truck. A survivor of the massacre told me that in his truck, there were four layers of people and everyone on the bottom layer died.

The southern provinces remain under martial law and (since July 2005) emergency rule. The fourth anniversary of the Tak Bai massacre passed four days after Thaksin was sentenced for corruption. Major prosecutions of military officers involved in the Tak Bai massacre have yet to take place (see John Virgoe, "Thailand's southern fix" (17 November 2008).

Third, the legal system in Thailand has increasingly been used to constrain speech and restrict rights. One of the PAD's demands, reflecting its pro-traditional-establishment orientation, has been the restoration of "proper" respect for Thailand's monarchy. In response to these demands or in excess of them, lese-majeste laws have been extensively used in recent months. In April 2008, for example, the police charged Chotisak Onsung and a friend with lese-majeste for not standing during the royal anthem at a Bangkok cinema. Chotisak and his friend had already endured verbal and physical assault by other patrons - none of whom were arrested.

In another lese-majeste case, noted social critic (and openDemocracyauthor) Sulak Sivaraksa was arrested in early November 2008 for remarks he had made during a speech in Khon Kaen in December 2007. Even leaving aside the principle that allegedly speaking against the king can be a reason for arrest, the eleven-month gap between Sulak's speech and his arrest suggests a political motive rather than an impartial one.

Fourth, the law is being used to deny certain citizens access to legal rights. In late October 2008, the National Security Council approved the use of Section 21 of the Internal Security Act (ISA) in the provinces of southern Thailand under martial law and emergency rule. Section 21 allows individuals who are arrested or suspected of violating national security to be sent for six months of "training" in lieu of criminal prosecution.

At first glance, this may seem like a good idea: an alternative to entrapment of up two years in Thailand's byzantine judicial system that some national-security detainees have to undergo. But the lack of clarity about how Section 21 will be used and whether individuals will be forced to undergo "training" is a worry. What will happen during the "training"; who will monitor it? When the determination of guilt and innocence is removed from the court, the imperative for the state to provide evidence of wrongdoing is removed as well. What makes the use of Section 21 of the ISA a misrule of law is that the withdrawal of legal protections for some citizens is being codified in law.

A broken arena

The analyst Awzar Thi, writing in August 2008, called for a re-evaluation of the meaning of the rule of law in Thailand, citing the misuses of the idea. More recently, Awzar has noted that the People's Alliance for Democracy is unique in its status as an internal threat to Thailand's body politic. Again, the PAD supporters' besieging of Don Muang and Suvarnabhumi airports are stages in an enveloping crisis which threatens to trigger further turmoil: since 30 November, red-shirted pro-government members of the pro-PPP United Front for Democracy against Dictatorship have massed at Bangkok's city hall to show their supportfor the government and to defend it against a coup, whether judicial or military.

A long-term solution to Thailand's crisis will be much harder to find than an easing of the stand-offs at Suvarnabhumi and throughout Bangkok. The implication of the above is that the crisis is as much about law as politics. The violation, rewriting, manipulation, and transgression of laws - in the stated service of restoring democracy or protecting the nation - have to cease if Thailand's misrule of law is to be reversed.

Thailand's political order is again under pressure from the billionaire-businessman-turned-politician Thaksin Shinawatra, whose overthrow by a military coup on 19 September 2006 ended his prime ministership but not his political ambitions. But as public debate focuses on the former leader's next moves, and whether the constitution introduced by the military junta will survive in its present form now that civilian rule has returned, a truer insight into the condition of Thailand's public life is suggested by the extra-judicial violence that has disfigured the country in the 2000s.